“Fair use” takes center stage at Google Books appeal — paidContent

The three appeals court judges, however, appeared less interested in the technical aspects of class actions than they were in tackling “fair use” — a four part test that examines whether a given activity (in this case Google’s book scanning) should be exempt from copyright. “Shouldn’t we address that first?” asked Judge Pierre Leval, a noted fair use scholar, adding that the issues in the case appeared to be “out of sequence.” Leval and fellow judge Barrington Parker appeared sympathetic at times to Google’s position that the book scanning is transformative and acts as a discovery method, rather than as a replacement for book sales. They suggested that the lower court should address the fair use issue sooner than later.